2. Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining;¹⁹

Furthermore, the Core Conventions are considered as inseparable from being a member of the ILO and therefore the Thais are obligated to respect these fundamental rights and prohibited from restricting their exercise.²⁰ Therefore, by denying Burmese migrant workers their rights to unionize and collectively bargain the Thais are in violation of the international obligations and duties which the Thais voluntarily acceded to.

Thailand has ratified the International Covenant of Civil and Political Rights and Article 22(1) states, “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests,”.²¹ Article 8(1)(a) of the International Covenant on Economic, Cultural, and Social Rights which Thailand has also ratified ensures “The right of everyone to form trade unions and join the trade union his choice..”.²² Article 20(1) of the Universal Declaration on Human Rights ensures “Everyone has the right to freedom of peaceful assembly and association.”.²³  Thus, the Thai government’s denial of the fundamental right to unionize and collectively bargain is completely out of step with the legal standards of the international community and is a flouting of the Thais’ obligations as member of the community of nations.

Section 87 and 100 of the Thai Labour Relations Act conflicts with the Thais’ obligation in accordance with the International Convention on the Elimination of all Forms of Racial Discrimination Article 5(d)(ix) ensuring equal access to “The right to freedom of peaceful assembly and association;” and (e)(i) “The right to form trade unions;”.²⁴  Furthermore, the Thai factories’ labor practice of specifically targeting women as their workforce with the intention of depriving these women of their fundamental rights to unionize and collectively bargain is in violation of the Thais’ obligations pursuant to the Convention on the Elimination of All Forms of Discrimination Against Women Article 11.²⁵ The Thai government repeatedly recites the statement that “Burmese migrants have the same rights as Thai people under Thai laws”, however, the violations against Burmese migrant workers under both Thai and international law are publicly known and tolerated. Thus, the Thai authorities have proven their unwillingness to enforce their own laws let alone international standards in regards to Burmese migrants. Therefore, the only means by which Burmese migrants workers can obtain the justice that is due to them under the law is to protect their own rights through unionization and collective bargaining.  The Burmese migrants do not need useless registration policies, rather the Burmese need unions to prevent the exploitation of their precarious situations and they need the Thais to fulfill their international obligations by recognizing the migrants’ right to unionize. As has been shown the SPDC fears unions because their very existence threatens the regime’s illegitimate, corrupt, and oppressive reign in Burma.

In contrast, Thailand is a vibrant democracy which has nothing to fear from the formation of Burmese unions and therefore they cannot pose a threat to national security. Unions are only a threat to national security when national security means oppression, abuse of power, and illegitimacy. Thus, the Thais should not fear unionization of Burmese migrant workers but rather embrace it because it can only strengthen the Thai democracy by extinguishing the exploitation by corrupt sectors of Thai society who are the true threat to Thai national security.

Thus, in conclusion it seems that Burmese workers are faced with a Hobson’s choice in which they are forced to choose between crushing oppression at home or exploitation abroad.  While the rights of Burmese workers are trampled upon in both Burma and Thailand there is a distinctive difference for the cause of these deprivations. Within Burma the right to unionize and collective bargaining are viewed by the military junta as means by which the citizens of Burma might rise up against the totalitarian regime. In contrast, the Thai government does not see unionization by Burmese migrants as a political threat but rather an economic threat to an elite business minority who wish to exploit the suffering caused by the SPDC at the expense of both Burmese and Thai labours. Both Burma and Thailand are obligated under domestic and international law to respect the Burmese workers freedom of association and right to assembly and in turn their rights to unionize and collectively bargain. Martin Luther King stated, “Injustice anywhere is a threat to justice everywhere”. Thus, for the rights of workers throughout the world to be vindicated the rights of Burmese workers in both Thailand and Burma must be achieved. The international community cannot be silent while Burmese workers toil under forced labor in Burma and indentured servitude in Thailand. Thai citizens cannot remain blind to the exploitation of their suffering neighbors by a small number profiting businessmen at the expense of the Thai society as a whole.  Therefore, the international community and especially ASEAN nations must demand that citizens of Burma are allowed to exercise their rights pursuant to Conventions 87 and 98 of the ILO. Furthermore, to ensure that Burmese workers in Thailand are afforded the same rights as Thai citizens in accordance with Section 30 and 48 of the Thai Constitution and in line with Thailand’s international obligations Burmese mi­grants must be allowed to exercise the rights of unionizing and collective bargaining.

Endnotes

19. ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 1998.

20. Id. Note 13.

21. International Covenant on Civil and Political Rights (ICCPR) (acceding on 29 Jan 1997).

22. International Covenant on Economic, Social and Cultural Rights (ICESCR) (acceding on 5 Dec 1999).

23. Universal Declaration of Human Rights (1948).

24. International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (acceding on 27 Feb 2003).

25. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (acceding on 8 Sep 1985).

Acknowledgement
The author wishes to acknowledge the essential insights and consultations with Mr. B.K. Sen without whom this article would not have been made possible. Furthermore, the author wishes to thank Mr. Moe Swe from the Yaung Chi Oo Workers Association for his tireless work on migrant issues and contribution of information to this article. Also, the author would like to cite Dennis Arnold and SEARC’s paper The Situation of Burmese Migrant Workers in Mae Sot, Thailand as an essential source of information for this article.